Maine Policy releases second edition of emergency powers scorecard
FOR IMMEDIATE RELEASE
February 1, 2022
Contact: Jacob Posik
Director of Communications
Maine Policy Institute Releases Second Edition of
“Scoring Emergency Executive Power in All 50 States”
Maine’s ranking fell five places in the second edition; eight of the 15 highest scoring states reformed their emergency power laws in 2021
PORTLAND, Maine – Maine Policy Institute today released the second edition of “Scoring Emergency Executive Power in All 50 States”, a report that examines the balance of power between the executive and legislative branches in every state during states of emergency. The analysis determines the extent of legislative oversight, the powers delegated to the chief executive and the process of initiating and terminating emergency declarations in each state across the country.
The second edition of the analysis is updated for emergency power reforms enacted in various states in 2021. Reform bills were submitted in 46 states last year, of which 16 were passed and 11 made substantive changes to their emergency processes.
Pennsylvania, Kentucky and North Carolina gained the most points from 2021 to 2022, while Arkansas, Ohio and Montana also made significant improvements. Eight of the top 15 scoring states reformed their laws within the last year, while the bottom 20 scoring states made no changes at all.
Maine, which made no changes to its emergency power laws in 2021, fell in the overall rankings from 22nd (tie) in 2021 to 27th (tie) in 2022. This is due to other states enacting reforms that improved their overall rankings.
“In 2022, the task of achieving a balanced emergency powers law should be paramount for every lawmaker across the country. The pandemic showed us just how far our system of government can be stretched in prolonged emergencies. To avoid the worst potential abuses of power in future emergencies, state legislators must outline a standard process which guarantees them a seat at the table and ensures liberty for their constituents,” said policy analyst Nick Murray, author of the report.
Maine can improve its emergency power laws by implementing safeguards that have been enacted in other states. Lawmakers can secure the people an equal seat at the table, no matter who controls the governorship or legislature, by requiring a legislative concurrence vote to extend an emergency beyond the initial 30-day declaration. They could also explore expanding their own authority to nullify specific orders issued by a governor under the emergency declaration, as New Hampshire did in 2021. Currently, Maine lawmakers only have the power to end the emergency declaration itself.
“The first edition of this report was cited across the country last year as state legislators wrangled with their chief executives over the proper balance of power during states of emergency. We hope this second edition continues to motivate states to improve their own processes to protect the liberty of their citizens in emergency situations,” Maine Policy CEO Matthew Gagnon said.
“Other states took action to reform their emergency power laws in 2021 while Maine’s legislative leaders sat on their hands, allowing the governor to rule unilaterally for nearly 16 months. While Maine’s emergency ended last year, this issue isn’t going away and must be addressed in the future to secure the liberty of Maine citizens, schools, businesses, churches and other organizations. Even during emergencies, the principles of representative government and the separation of powers cannot be deserted. The people of Maine must always have a say in their government,” Gagnon added.
The analysis does not measure how individual governors exercised their emergency powers during the COVID-19 pandemic. Rather, the analysis examines the legal environment under which a governor may exercise executive power during a state of emergency.
Every state received a numerical score between 1 and 20 across five categories for a total of 100 points. The five categories examined in each state are: 1) the process for initiating an emergency declaration; 2) the process for terminating an emergency declaration; 3) time limits on emergency declarations; 4) whether a governor’s powers persist after the official termination of the emergency; and 5) the ability of the governor to alter statute or regulations during the emergency.
High scores in the report denote the most stringent executive powers that allow for the greatest accountability from the people’s branch, the legislature. Low scores denote the weakest checks on emergency power and the greatest potential threat to citizens’ individual liberty.
This second edition includes model legislation for Maine developed by Maine Policy based on a slate of reforms introduced in the First Session of the 130th Maine Legislature. The bill would limit the duration of emergency proclamations and orders issued by the governor without a legislative concurrence vote, require orders that infringe on constitutional rights to be narrowly tailored to serve a compelling health or safety purpose, and allow for expedited judicial review of challenges to emergency orders.
It would also enable either chamber of the legislature to end an emergency declaration and prevent the governor from reissuing a substantially similar proclamation or order if rescinded by the legislature. Finally, it also prohibits preferential treatment of so-called “essential businesses” and acknowledges that essential businesses are those that employ anyone in the state of Maine. That legislation can be viewed here.
A digital version of analysis can be read here. A public spreadsheet containing information on all 50 state scores can be viewed here.
Maine Policy Institute is a nonprofit, nonpartisan organization that works to expand individual liberty and economic freedom in Maine. Learn more about our work at www.mainepolicy.org.